187 Tenn. 669 | Tenn. | 1948
delivered the opinion of the Court.
Each of these defendants was separately indicted for unlawfully selling whiskey. By agreement the cases were consolidated and tried together. Each defendant was convicted and has appealed.
The first error assigned is that the Court should have sustained their respective motions to quash the indictments because they do not allege the name of the person who bought the whiskey alleged to have been sold by each defendant. These indictments allege the dates of sale.
The same insistence was made in State v. Staley, 71 Tenn. 565, and there held untenable, the Court saying that “it is the selling at all — that is the essence of offense, and not the person to whom sold.” The question was again made in Page v. State, 79 Tenn. 202, 203, and again this Court held that “the indictment need not, therefore, specify the person to whom the sale was made”.
There is no citation of any decision upholding the insistence just stated, nor is there anything in this record to indicate that the State had no reason to believe the defendants guilty of the offenses charged in those counts. The insertion of several counts charging kindred offenses which the proof may develop to be a violation of one statute or another is a common and approved practice, and tends to a much more rapid dispatch of the business of the Court. We do not think such practice is either unfair or prejudicial to defendants.
The fourth count charges the unlawful sale of whiskey for a valuable consideration. The jury returned a general verdict of guilty. It is insisted that the evidence preponderates against that verdict.
Each of these four defendants was a taxi cab driver at Oak Ridge. Apparently the police there suspected these young men of being engaged in the unlawful sale of whiskey. Therefore, three detectives were engaged and furnished funds to pay for whiskey which these taxi drivers might at their suggestion sell them. These detectives rented two or three rooms at a hotel in Oak Ridge and then contacted at different times each of these defendants for the purpose of purchasing whiskey. The proof is that each defendant then delivered whiskey to these detectives and 'was paid for it.
Detectives Griswold and Zumstein testified that Zum-stein phoned Chambers on the night pf April 16, 1948 from the hotel. Chambers then came to his room and when asked whether he “had any whiskey” he said “yes”, but that “he was just about out”, and intended ‘ ‘ to go get some more ’ ’. Chambers then left and returned in about fifteen minutes with two pints of Schenley’s Whiskey for which he charged and was paid $9.00. It is shown by the testimony of a retail liquor dealer that the retail price of that brand of whiskey was at that time $2.70 a pint.
These same two detectives testified that on the night of April 16, 1948 plaintiff in error Sharp came to their hotel room and they “asked him if he had some whiskey and he said he did. ’ ’ He then left and soon returned with two pints of Calverts Reserve Whiskey for which he charged and they paid him $10.00. The retail price of that brand of whiskey is shown to be $2.70 a pint. When this transaction was completed, according to these detectives, Sharp said to them that if they “wanted any more — call him and if he wasn’t there to just call any of them and they would send it”.
Since there is no contradiction or denial of any of this evidence with reference to Chambers and Sharp, it necessarily results that the only conclusion which can be reached as to them is that the evidence does not preponderate against the verdict. It is unnecessary to dis
Galbreath and Myers further say, however, that in response to the request of these detectives, they went to an unidentified bootlegger and from him procured and paid for the whiskey and delivered it to these detectives at their hotel room, and in return were paid by way of reimbursement only the amount which they had each actually expended for the whiskey plus a taxi cab fee of $1.50 and $1.00, respectively.
Based upon their testimony just stated, Galbreath and Myers insist that in these transactions each was acting exclusively as agent of the buyers of the whiskey. They seek to have applied to the insistence just stated the rule that the mere purchase of whiskey is not a violation of the statute prohibiting its sale, except as provided by code section 11210. They are not indicted for a violation of that code section.
The rule that one who acts merely as agent of another in purchasing whiskey is not thereby guilty of violating a statute which prohibits a sale does not apply when the agent is interested in the sale. In 30 American Jurisprudence, page 408, the general rule is stated to be that if “the agent is interested in the unlawful sale he may be convicted of a violation of the law”. The exception stated may have resulted from the fact observed by this Court in Kelly & Co. v. State, 123 Tenn. 516, 535,
So, it is not necessary to determine' whether G-al-breath and Myers were in fact and law the agents of the ■buyer or of the sellers in these whiskey sale transactions, since the rule invoked by them is not applicable to the facts admitted by these two men. . Accepting their testimony as a fact of this case, that fact discloses that each of these men had a personal financial interest in the completion of the sale in which each admittedly párticipated; to-wit, the receipt of a substantial taxi cab fee in each case by reason of the successful consummation of the sale. Each expected and received compensation for bringing the- sale to a successful conclusion. Each, therefore, comes within the exception whereby an agent of the purchaser who is financially interested in the completion of the sale is guilty of violating the statute prohibiting such sale.
By two assignments of error it is insisted that the charge to the jury is prejudicially erroneous. These in-sistences are predicated upon the assumption that the
The judgments are affirmed.
